Citation Nr: 0518195
Decision Date: 07/05/05 Archive Date: 07/14/05
DOCKET NO. 96-13 737A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an initial compensable disability
evaluation for residuals of a concussion.
2. Entitlement to an initial compensable disability
evaluation for otitis media of the right ear.
3. Entitlement to a compensable disability evaluation based
on multiple noncompensable service-connected disabilities.
4. Entitlement to service connection for a psychiatric
disorder.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran served on active duty from June 1978 to June
1982.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of the Waco, Texas,
Department of Veterans Affairs (VA) Regional Office (RO),
dated in April 1995. That decision granted service
connection for residuals of concussion and right ear otitis
media and assigned noncompensable ratings for those
disabilities, denied service connection for a psychiatric
disorder, and denied entitlement to a compensable rating for
multiple noncompensable disabilities. In rating decisions
not on appeal, the RO denied service connection for tinnitus,
bilateral hearing loss, and vertigo.
FINDINGS OF FACT
1. The veteran's residuals of concussion include purely
subjective complaints such as headaches, without any
neurological component.
2. The veteran has Level "I" hearing in both ears.
3. In light of the assignment of a 10 percent rating for
residuals of concussion, there is no longer a basis for the
assignment of a 10 percent evaluation for the service-
connected disabilities under 38 C.F.R. § 3.324.
4. A psychiatric disorder did not have its onset during
active service or result from disease or injury in service.
CONCLUSIONS OF LAW
1. A 10 percent rating, and no more, for residuals of
concussion is warranted. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045, 9304 (2004).
2. An initial compensable rating for right ear otitis media
is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.85, Diagnostic Code 6201 (2004).
3. Because of the award of a 10 percent rating for residuals
of concussion, entitlement to a 10 percent evaluation based
on two or more noncompensable service-connected disabilities
must be denied as a matter of law. 38 C.F.R. § 3.324 (2004).
4. The veteran is not entitled to service connection for a
psychiatric disorder. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137
(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to notify and assist
VA has a duty to notify claimants for VA benefits of
information necessary to complete and support a claim and to
assist claimants in the development of evidence. 38 U.S.C.A.
§§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.321 (2004). In this case, VA's duties have been fulfilled
to the extent possible.
Specifically, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to provide, and
(3) that the claimant is expected to provide. In what can be
considered a fourth element of the requisite notice, VA must
"also request that the claimant provide any evidence in the
claimant's possession that pertains to the claim."
38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g).
VA has satisfied its duty to notify by means of a letter from
the RO to the veteran dated in September 2003. The veteran
was told what was required to successfully establish service
connection and increased ratings and of his and VA's
respective responsibilities in terms of obtaining information
and evidence. He was also asked to submit pertinent
information and/or evidence to the RO as soon as possible.
This letter was not mailed prior to the initial rating
decision.
Although the section 5103(a) notice provided to the veteran
was deficient as to its timing, that error was
nonprejudicial. See Conway v. Principi, No. 03-7072 (Fed.
Cir. Jan. 7, 2001) (The "harmless error doctrine" is
applicable when evaluating VA's compliance with the VCAA).
In this regard, the appellant did not provide any additional
evidence in response to the letter that was not fully
considered by the RO in the supplemental statement of the
case (SSOC) issued in April 2004. There is simply no
indication that disposition of his claims would have been
different had he received pre-adjudicatory notice pursuant to
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, the
veteran responded to the SSOC in May 2004, indicating that he
had no additional evidence to submit.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2004). All identified, pertinent evidence, including VA
medical records has been obtained and associated with the
claims file. Service medical records are in the record. The
veteran has not responded to requests from the RO with
information about additional relevant sources of evidence.
There is no indication of any relevant records that the RO
has failed to obtain.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2004). An examination or opinion is necessary to make a
decision on the claim when the record (1) contains competent
evidence that the claimant has a current disability or
persistent or recurrent symptoms of the disability; (2)
contains evidence which indicates that the disability or
symptoms may be associated with the claimant's active duty;
and (3) does not contain sufficient medical evidence for VA
to make a decision. See 38 U.S.C.A. § 5103A(d).
VA audiological and psychiatric examinations were conducted
in August 1996. Mental health evaluations were also
conducted in February 1997 and March 2004. Additional
audiological, neurological, and ear examinations were
conducted in December 2003.
Accordingly, having determined that the duty to notify and
assist has been satisfied to the extent possible, the Board
turns to an evaluation of the veteran's claims.
II. Increased rating claims
A. General Rating Criteria
Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In a claim for a greater original rating after an initial
award of service connection, all of the evidence submitted in
support of the appellant's claim is to be considered.
Separate ratings can be assigned for separate periods of time
based on the facts found, a practice known as "staged"
ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); 38
C.F.R. § 4.2 (2004). This is distinguishable from a claim
for increase, in which the present level of the disability is
the primary concern. See Francisco v. Brown, 7 Vet. App. 55,
58 (1994). The Board notes that these matters arose from
initial awards of service connection for otitis media of the
right ear and residuals of concussion, based on the claims
filed in March 1995.
B. Initial compensable rating for residuals of concussion
The veteran reports that his residuals of concussion include
headaches. VA treatment records dated from 1995 show
intermittent complaints of headaches without any neurological
component. In August 1996, the veteran underwent a VA
neurological examination. No objective neurological
residuals were found. He did report intermittent headaches.
The diagnosis was history of mild concussion in service with
no apparent objective neurological residuals and now
intermittent headaches apparently not requiring significant
medical follow-up.
In December 2003, the veteran underwent an additional VA
neurological examination. He reported headaches now
occurring once to twice a week, generalized in nature. The
diagnosis was status post concussion of the head with
occasional headaches. X-rays of the skull and CT scan were
normal.
The veteran claims that the severity of his service-connected
residuals of concussion warrant a higher disability rating.
His condition is evaluated under VA's Schedule for Rating
Disabilities, 38 C.F.R. § 4.123, Diagnostic Code 8045 as
noncompensable. Diagnostic Code 8045 provides that purely
neurological disabilities such as hemiplegia, epileptiform
seizures, facial nerve paralysis, etc., following trauma to
the brain, will be rated under the diagnostic codes
specifically dealing with such disabilities, with citation of
a hyphenated diagnostic code (e.g., 8045-8207). Purely
subjective complaints such as headache, dizziness, insomnia,
etc., recognized as symptomatic of brain trauma, will be
rated 10 percent and no more under Diagnostic Code 9304.
This 10 percent rating will not be combined with any other
rating for a disability due to brain trauma. Ratings in
excess of 10 percent for brain disease due to trauma under
diagnostic code 9304 are not assignable in the absence of a
diagnosis of multi-infarct dementia associated with brain
trauma. 38 C.F.R. §§ 4.124a, Diagnostic Code 8045 (2004).
Based on the pertinent diagnostic criteria set forth at
Diagnostic Code 8045, the Board finds that a 10 percent
rating and no more is appropriate under Diagnostic Code 9304.
The Board notes that both VA examinations contain diagnoses
which identify headaches as a residual of the concussion.
However, an evaluation in excess of 10 percent for brain
disease due to trauma under diagnostic code 9304 is not
warranted, as there is an absence of a diagnosis of multi-
infarct dementia associated with brain trauma. 38 C.F.R. §§
4.124a, Diagnostic Code 8045 (2004).
C. Initial compensable rating for right ear otitis media
The veteran's right ear hearing loss is evaluated under VA's
Schedule for Rating Disabilities, 38 C.F.R. § 4.85,
Diagnostic Code (Code) 6201 as noncompensable effective from
March 29, 1995. That code provides that chronic
nonsuppurative otitis media be rated as hearing loss under
Diagnostic Code 6100. In evaluating service-connected
hearing impairment, disability ratings are derived by a
mechanical application of the ratings schedule to the numeric
designations assigned after audiometric evaluations are
rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349
(1992).
The evaluation of hearing impairment is based on examinations
using controlled speech discrimination tests together with
results of puretone audiometry. 38 C.F.R. § 4.85. The
results are charted on Tables VI, VIa, and VII. Thus, in
order to assign an increased evaluation for hearing loss, the
veteran must demonstrate a decrease in percentage of speech
discrimination and/or an increase in average puretone decibel
loss. When hearing loss is service-connected in only one
ear, in order to determine the percentage evaluation from
Table VII, the non-service connected ear will be assigned a
Roman numeral designation for hearing impairment of I,
subject to the provisions of 38 C.F.R. § 3.383 (2004).
The regulations evaluating the veteran's hearing loss were
changed during the pendency of this appeal. According to
VAOPGCPREC 7-2003 (Nov. 19, 2003), when a new statute is
enacted or a new regulation is issued while a claim is
pending before VA, VA must first determine whether the
statute or regulation identifies the types of claims to which
it applies. If the statute or regulation is silent, VA must
determine whether applying the new provision to claims that
were pending when it took effect would produce genuinely
retroactive effects. If applying the new provision would
produce such retroactive effects, VA ordinarily should not
apply the new provision to the claim. If applying the new
provision would not produce retroactive effects, VA
ordinarily must apply the new provision. Statutes and
regulations are presumed not to apply in any manner that
would produce genuinely retroactive effects, unless the
statute or regulation itself provides for such retroactivity.
See Landgraf v. USI Film Products, 511 U.S. 244 (1994);
Regions Hospital v. Shalala, 522 U.S. 448 (1998); Kuzma,
supra.
A review of both the old and new criteria regarding the
evaluation of hearing impairment (as opposed to exceptional
patterns of hearing impairment) at 38 C.F.R. § 4.85, Tables
VI and VII, reveals that no substantive changes were made
between the old and new diagnostic criteria. That is, the
retroactive effects of these criteria are irrelevant.
Substantive changes were made when comparing the old
38 C.F.R. § 4.85(c) and the new criteria at 38 C.F.R. § 4.86,
in connection with the criteria at Table VIa for exceptional
patterns of hearing impairment. However, these criteria are
not applicable to the current case and have no bearing on its
adjudication. As a Chief of an VA Audiology Clinic has not
certified that use of the criteria under Table VI and VII
would be inappropriate, and no audiometric examination has
shown puretone threshold at each of the four specified
frequencies is 55 decibels or more, or that the puretone
thresholds are 30 or less at 1000 Hertz and 70 decibels or
more at 2000 Hertz; the criteria at 38 C.F.R. § 4.85(c),
4.86, and Table VIa are not for application.
The veteran filed a claim of entitlement to service
connection for a chronic ear infection in March 1995.
Service connection for otitis media, right ear, was granted
based on a history of ear infections in service. In that
April 1995 rating decision, a zero percent rating was
assigned based on absence of hearing loss as reflected in
service records.
Upon VA audiology examination in August 1996, pure tone
thresholds, in decibels, were as follows:
At 500 1000 2000 3000 4000 Hertz:
Right ear: xx 20, 20, 15, 10;
Left ear: xx 15, 15, 10, 10.
The puretone average in the right ear was 16. The puretone
average in the left ear was 13. The Maryland CNC speech
recognition score was 100 percent bilaterally. The
audiological assessment was hearing within normal limits with
excellent speech recognition. Upon examination of the right
ear, the veteran denied drainage from either ear, but felt
his right ear overall was worse than the left. There was no
current ear disease. Weber testing was unsure, Rhine was
positive. Diagnoses included suspected hearing loss,
subjective tinnitus, and no current ear infection.
A VA audiological examination was conducted in December 2003,
at which time the veteran primarily complained of trouble
with speech comprehension, especially related to tinnitus.
He noted that he often had to turn his hearing aid devices up
very loud to understand people and watch television. Pure
tone thresholds, in decibels, were as follows:
At 500 1000 2000 3000 4000 Hertz:
Right ear: xx 15, 5, 0, 0;
Left ear: xx 10, 10, 0, 5.
The puretone average in the right ear was 5. The puretone
average in the left ear was 6. The Maryland CNC speech
recognition score was 90 percent in the right ear and 98
percent in the left ear. The diagnosis was that hearing was
within normal limits at 500-4000 Hz. Middle ear function
assessment included Type A tympanogram showing ipsilateral
reflexes present at 500-4000 Hz in both ears. Occasional
ringing tinnitus was present bilaterally. There was no
reported ear pain on examination.
In December 2003, a VA ear disease examination was conducted.
The veteran complained of dizziness, for which he reportedly
takes meclizine. There is a diagnosis of Meniere disease.
He complained of tinnitus. He reported his last otitis
externa infection was in 1980.
Examination of the right ear showed no deformity of the
auricles. The external canal was clear. There was no edema,
no scaling, and no discharge. Tympanic membranes were clear.
Mastoids had no discharge and there was no evidence of
tumors. There was no disturbance of balance, no upper
respiratory disease and no complaint of hearing loss. There
was no active ear disease present. There was no evidence of
infection of the middle or inner ear. The history of
dizziness was noted. There was no staggering gait and no
vertigo. Tinnitus was noted bilaterally. The last episode
of vertigo was reported to have been in September 2003. No
current complaints of ear disease were noted. The diagnoses
were tinnitus, bilateral, otitis externa, no evidence of
recurrence today, Meniere syndrome, currently under treatment
with meclizine. As noted, CT scan and X-rays of the skull
were within normal limits.
Medical records from the VA Medical Center (VAMC) Dallas and
Shreveport do not show significant complaints or treatment
for right ear disease including otitis media.
The findings from the VA examinations show Level I hearing
for both ears. 38 C.F.R. § 4.85 Table VI (2004). Applying
the findings from these examinations to the Table in the
Rating Schedule shows that a compensable rating is not
warranted for the veteran's service-connected right ear
otitis media at any time thus far. 38 C.F.R. § 4.85 Table
VII (2004).
The Board notes that the veteran has denied other symptoms of
right ear otitis media and right ear disease, and that no
right ear otitis media has been found on relevant VA
examinations. Accordingly, there is no basis for the
assignment of an increased or separate evaluation, based on
the aforementioned ear symptomatology.
In summary, the Board has reviewed all the evidence of
record, and the objective clinical evidence does not support
a compensable schedular evaluation for right ear otitis media
at any time since the grant of service connection, i.e.,
March 1995. See Fenderson, 12 Vet. App. 119. The level of
hearing that has been demonstrated on objective evaluation is
not consistent with a compensable schedular evaluation under
VA regulations. See Lendenmann, 3 Vet. App. 349. The Board
appreciates the veteran's arguments. However, the Board is
obligated to apply the facts of record to the governing law.
In view of the foregoing, based upon the audiometric
evaluation findings of record, the veteran is not entitled to
a compensable rating for right ear otitis media. The
preponderance of the evidence is against the claim for an
initial compensable evaluation for right ear otitis media at
any time since the grant of service connection, and the
doctrine of reasonable doubt does not apply. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).
D. Rating under 38 C.F.R. § 3.324
Whenever a veteran is suffering from two or more separate
permanent service-connected disabilities that are of such
character as to clearly interfere with normal employability,
but are not found to be of compensable degree under the VA's
Rating Schedule, the rating agency is authorized to apply a
10 percent evaluation, but not in combination with any other
rating. 38 C.F.R. § 3.324 (2004). In this case, the veteran
is service connected for residuals of concussion and right
ear otitis media. These disabilities have been evaluated as
noncompensably disabling until the present Board decision.
In light of the Board's action to assign a 10 percent
disability evaluation for the service-connected residuals of
concussion, the veteran may not be awarded a separate 10
percent disability evaluation for multiple noncompensable
disabilities pursuant to 38 C.F.R. § 3.324. This claim is
rendered moot by the award of the 10 percent rating for the
residuals of concussion. Thus, the appeal must be denied as
a matter of law. See Sabonis v. Brown, 6 Vet. App. 426
(1994).
III. Service connection for a psychiatric disorder
Service connection connotes many factors, but basically means
that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App.
309, 314 (1993).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§
3.303, 3.304 (2004). In addition, service connection may be
granted for any disease diagnosed after discharge, when all
of the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2004). For the showing of chronic disease
in service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established there is no requirement of evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service is not, in fact,
shown to be chronic or where the diagnosis of chronicity may
be legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b)(2004).
In addition, service connection for a psychosis may be
established based upon a legal "presumption" by showing
that it manifested itself to a degree of 10 percent or more
within one year from the date of separation from service.
38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2004).
The veteran contends that he suffers from a psychiatric
disorder secondary to exposure to jet fuel fumes and/or a
concussion in service. He has detailed his experience of
falling asleep inside an aired-out jet fuel cell of a plane
while in the Air Force. The record includes service medical
records and VA examination reports, as well as VA treatment
records dating from 1995. The service medical records
reflect that he was treated for fume inhalation. He also
suffered a head trauma and lost consciousness in March 1980.
However, a VA psychiatric examination conducted in August
1996 yielded no evidence of a relationship between the
currently diagnosed schizoaffective disorder and exposure to
jet fumes or a concussion in service, according to the
examining psychiatrist. The examiner stated that he was
unable to state that the veteran's schizoaffective disorder
was related to his history of exposure to jet fuel fumes or
secondary to concussion. He said that unless a mental
disorder followed closely in time after exposure to jet fuel
fumes or concussion, he did not see how any relationship
existed. Additional evaluation was recommended.
Accordingly, the veteran was thereafter scheduled for further
VA evaluation, as discussed below.
An extensive VA neuropsychiatric evaluation conducted in
February 1997 found no evidence of a current mental problem
related to the foregoing incidents. Regarding the issue of a
possible relationship between the in-service concussion and
psychiatric disorder, the examiner stated that this was quite
unlikely because the head injury was mild, the great majority
of post-concussive syndromes resolve within 3 to 6 months,
and symptoms reported by those in whom the syndrome does not
result are neurasthenic and generally involve complaints
about attention, concentration, and memory. The examiner
further concluded that any possible contribution of the acute
toxic exposure to jet fuel in the Air Force and the
psychiatric disorder was unlikely, and provided detailed
rationale for this opinion.
In March 2004, the veteran underwent an additional VA
psychiatric evaluation. The examiner reviewed the veteran's
reported history and claims folder, and examined the veteran.
The diagnoses included dysthymic disorder, generalized
anxiety disorder, panic disorder with agoraphobia, cognitive
disorder not otherwise specified, and alcohol dependence.
The veteran reported that he drank alcohol daily and
described a history of substance abuse. The examiner noted
that the veteran's alcohol abuse was significantly affecting
his functioning, possibly including his memory. As to the
likelihood of a relationship between any current mental
disorder and exposure to jet fumes, he opined the veteran's
exposure to alcohol and drugs over the years more likely
contributed to poor memory and attention than did any
exposure to jet fumes in the military.
The Board notes that no chronic psychiatric condition was
diagnosed on the separation from service or at any time in
service. Moreover, VA treatment records do not show
treatment for any psychiatric condition until almost eight
years following service. Additionally, uncontroverted VA
medical opinion evidence has established that the acute
problems the veteran had in service have resolved and are not
related to the current psychiatric problems.
Contrary to the veteran's contention that his current mental
disorder is related to inhaling jet fuel and/or a concussion
in active service, the opinions of multiple VA examiners
consulted to assess the likelihood of that very matter were
unfavorable. The evaluations were based on a review of the
veteran's medical history and current examination. See
Prejean v. West, 13 Vet. App. 444, 448-9 (2000). There is no
medical opinion of record refuting these opinions.
In fact, the record does not reflect the current mental
health problems until at least eight years after service.
There was no evidence of chronic mental disability at service
separation or for years thereafter. There is no competent
evidence of record linking the veteran's current psychiatric
disorder to any in-service disease or injury.
Again, the Board appreciates the sincerity of the veteran's
belief that he currently has mental problems that are related
to exposure to jet fuel fumes and/or a concussion in service.
However, it is well established that, as a layperson, he is
not considered capable of opining, no matter how sincerely,
that his claimed condition is etiologically related to
service. See Routen v. Brown, 10 Vet. App. 183, 186 (1997)
("a layperson is generally not capable of opining on matters
requiring medical knowledge"), aff'd sub nom. Routen v.
West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492
(1992); Moray v. Brown, 5 Vet. App. 211 (1993).
For the reasons and bases provided above, the Board concludes
that the evidence in this case preponderates against the
claim for service connection for a psychiatric disorder. The
evidence in this case is not so evenly balanced so as to
allow
application of the benefit-of-the-doubt rule. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).
ORDER
A 10 percent rating, and no more, for residuals of concussion
is granted, subject to the laws and regulations governing the
award of monetary benefits.
An initial compensable rating for otitis media of the right
ear is denied.
The claim for a compensable disability evaluation based on
multiple noncompensable service-connected disabilities is
dismissed.
Service connection for a psychiatric disorder is denied.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs